Abstract
The judicial committee mentioned in the last chapter is a specific system with Chinese characteristics in the courts of modern China.
To acquire knowledge, we need to study the phenomena of nature. We study the phenomena of nature in order to acquire knowledge.
—The Great Leaning.
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Notes
- 1.
Several related articles are, for example, Wang Qiguo, Zhang Diqiu: “On Due Attributes of Judicial Independence,” Science of Law, Issue 3, 1989; Lü Yazhong: “Thoughts on Improving the Working System of Judicial Committee,” Legal Science Monthly, Issue 5, 1996; Kong Xiancui: “Legal Guarantee Mechanism Need to be Established to Ensure the Independent Trial of People’s Courts,” Modern Law Science, Issue 5, 1995; Tan Shigui: “On Judicial Independence,” Tribune of Political Science and Law, Issue 1, 1997. The essay of He Weifang: “Two Problems of China’s Judicial Management System” (Social Sciences in China, Issue 6, 1997) mainly criticizes the setup and function of judicial committee from the point of judicial bureaucracy. In addition, there are some articles focusing on international standard to review China’s judicial procedures. The judicial committee has been criticized as well. For example Chen Ruihua: “China’s Code of Criminal Procedure After Amendment—Analysis From The Point of International Standard of Criminal Justice,” Modern Law Science, Issue 5, 1996; Yue Liling, Chen Ruihua: “International Standard of Criminal Procedural Justice and Criminal Procedure Law After Amendment (I),” Tribune of Political Science and Law, Issue 3, 1997.
- 2.
Article 11 of the Organic Law of the People’s Court.
- 3.
As far as I have recently seen, this is actually an empirical proposition based on China’s current endeavors to cope with the practices of developed countries, since I have never noticed anyone citing “laws” of the Maldives or Eskimo to criticize judicial committee. I am saying this not to “make a fuss,” but to try to demonstrate that the so-called practice and the fact that people think this argument is convincing have implied the pursuit of “modernization” of modern Chinese. If we say that there is a certain cause–effect relationship between the existence of judicial committees and the modernization of a country, I am afraid it will be far-fetched and unconvincing.
- 4.
David Hume, Treaties of Human Nature, translated by Guan Wenyun, proofread by Zheng Zhixiang, the Commercial Press, 1980.
- 5.
- 6.
As in note 1.
- 7.
Dong Biwu: “To earnestly implement and execute the Organic Law of the People’s Courts and the Organic Law of the People’s Procurators,” and “Speech made at the conference attended by procurators of PLA military procurators and presidents of PLA military courts,” selected from Dong Biwu Collection, People’s Publishing House, 1985.
- 8.
Please refer to Dong Biwu: “On the ideological work of the Party on political and legal aspects” and “Issues related to the reform of people working for the outdated justice,” as the previous note.
- 9.
“But ‘purpose of law’ is the last thing we should apply to the history of emergence of law. … the origin of the emergence of a thing and its ultimate usefulness, its practical application, and incorporation into a system of ends, are toto coelo separate; … and overpowering and dominating consist of re-interpretation, adjustment, in the process of which their former ‘meaning’ and ‘purpose’ must necessarily be obscured or completely obliterated .” Nietzsche: “On the Genealogy of Morality,” translated by Zhou Hong, SDX Joint Publishing Company, 1992, pp. 55–56. Please refer to Suli: “How are systems formed?” Journal of Comparative Law, Issue 1, 1998.
- 10.
The Foucault Reader: Nietzsche, Genealogy, History, translated by Suli, Review of Academic Thoughts, Issue 4, Niaoning University Press, 1998.
- 11.
For example, the transition of the jury system in the Anglo-American Law, the consideration system of the contract law, and action in ream of the maritime law. History has changed both the appearance and function of those systems.
- 12.
Please refer to Article 2 of World Declaration of Judicial Independence.
- 13.
In the analysis model of Posner, even judicial independence itself can be understood as a design of former members in the legislative organ to ensure their stable transaction with social interest groups. In other words, the so-called judicial independence is to make sure that the justice be influenced more by former members of the legislative organ instead of their successors. Posner even concluded further that the shorter the expected valid period, the weaker the judicial independence on this legislation. Posner even quoted some empirical research results to support this point. Please see Richard A. Posner, Economic Analysis of Law, 4th ed., Little, Brown and Company, 1994, p. 533 and its note 4.
- 14.
Alan Dershowitz wrote in one of his books that one of the rules for judicial struggle is “not one person is really in need of justice,” but “what is sarcastically is that the result actually arrived at is probably a kind of approximately fair justice.” The Best Defense, translated by Tang Jiaodong, Law Press China, 1994, pp. 5–12.
- 15.
There are many general descriptions and empirical research of this kind. For example, a famous American judge Jerome Frank, based on his judicial experience of many years, said that “the jury is the worst possible enemy of this ideal of the supremacy of law.” He thought it would be better if the judge himself hears the case. Generally speaking, those supporting the jury are trial lawyers, since they “have immediate interests that can influence the jury.” Please see Henry J. Abraham, Judicial Process, 4th ed., Oxford University Press, 1980, pp. 138–139. Posner thinks that one of the actual roles of the jury is to let people of different experiences and views review the case in order to counterbalance the specialty of the professional judge. Please see Economic Analysis of Law, as the previous note 13, p. 583. Kalven and Zeisel discovered in their famous research in 1960s that in criminal cases, about 25 % of juries had different views on the case disputes from the judge’s judgment. Please see Kalven, Jr. And Hans Zeisel, “The American Jury: Some General Observation,” American Jury, Little, Brown and Company, 1966. According to many scholars, the American society in the 1960s had a higher social homogeneity. But in 1970s, the social homogeneity was lower and thus disputes between the jury and the judge should have grown, which meant that juries had much stronger restrictions on the substantial judgments of the judges.
- 16.
When analyzing and reviewing the opinion of Oliver Wendell Holmes that “law is the forecast of case outcomes, Posner pointed out that most of the judges would be very sensitive about the overruling of their judgment by higher courts. They therefore would forecast decisions of higher courts and adjust their judgments accordingly. Although Posner thought this kind of practice undesirable. Please see The Problem of Jurisprudence, translated by Suli, China University of Politics and Law, 1994, p. 285. Please also see, Alan Dershowitz believes that the most important is that the judge “doesn’t want higher court to overrule their judgment, … they see overruling of original judgment by higher court as personal humiliation and career failure…” as previous note 14, p. 6. In modern China, at least a large number of basic-level courts have such regulation as if judgment is overruled or changed by higher court, the judge of original judgment will lose some bonus or other visible or invisible interests. This has made Chinese judges of basic level whose incomes are not that high are more sensitive and careful about the overruling of their judgment at least in theory.
- 17.
There are so many empirical researches of this kind with different perspectives. Please refer to, for example, Herbert Jacob’s empirical research and theoretical model based on organization theory, “Courts as Organizations” in Empirical Theories about Courts (Keith O. Boyum and Lynn Mather (eds.), 1983), pp. 291ff. David J. Danelski, “The Influence of the Chief Justice in the Decisional Process of the Supreme Court,” and David J. Danelski and Jeanne C. Danelski, “Leadership in the Warren Court,” both articles are collected in Sheldon Goldman and Austin Sarat (eds.), American Court Systems, Longman, 1989, pp. 486–499, 500–510.
- 18.
Please refer to Bernard Schwartz, Super Chief, New York University Press, 1983.
- 19.
Many writings about US Constitution have recorded this incident. Please refer to David M. O’Brien, Storm Center: The Supreme Court in American Politics, 2nd ed., Norton, 1990, pp. 87ff.
- 20.
This may be least imported by China’s jurisprudence when learning from the West. Up till now, what have been “imported” most are still those propositions and categories of political philosophy in the eighteenth and nineteenth century published in the twentieth century, but not results or methods of empirical research which attach importance to experience that has been greatly developed since the twentieth century.
- 21.
Please see Posner’s analysis of this issue: “but independence means only that judges decide cases as they like without pressure from other officials, it is not obvious that independent judiciary is in the public interest…” The Problem of Jurisprudence, same as the above, p. 8.
- 22.
The earliest example about judicial independence that be quoted most frequently by people today is the famous anecdote about British Chief Justice Sir Edward Coke’s boycott of interference of justice by King of England James I. Please refer to George Holland Sabine: A History of Political Theory, translated by Liu Shan, Commercial Press, 1990, pp. 509ff.
- 23.
About general demonstration, please see Suli: “On Specialization of Legal Activities,” Rule of Law and Its Native Resource, China’s University of Politics and Law Press, 1996, especially paragraph 2. In fact, the most important and central argument about Sir Edward Coke’s boycott of interference of Justice by James is that judges have special skills of justice, that is the so-called the artificial reason, not the political philosophy and ethic philosophy popular in the textbooks of jurisprudence. The judicial censorship actually showing judicial independence of the USA is also creation of US Chief Justice Marshall. Please see Suli: “How Do Systems Take Shape?”Journal of Comparative Law, Issue 1, 1998.
- 24.
Please refer to analysis by Posner in The Problem of Jurisprudence, the same as previous note 16, pp. 261ff. It must be noted that as far as the system level is concerned, China’s second instance is even simpler than the instance of appeal in the USA. It is because first of all, China adopts statutes system and its applied laws are relatively simple, but the USA adopts case law system in which judge-made laws and legal interpretation are very important and complicated. Secondly, China has a higher social homogeneity than the USA, and thus, the application of law and legal interpretation in China have less disputes than those in the USA. Then, the challenge to the professional knowledge of judges of appeal is much lower in China. But under special circumstances (e.g., when there are conflicts between laws and public feelings or local interests), this kind of high homogeneity has obviously higher pressure on judges directly hearing the case or judges of first instance than judges of second-instance courts. Also please refer to related analysis of the following section of “analysis of two examples.”
- 25.
Due to the phenomenon of education devaluation in China in recent years, the actual education level of judges may be lower than that in their files. Please refer to He Weifang: “Realizing Social Justice Through Judiciary: A Perspective On Current Situations of Chinese Judges,” The Age Heading Toward Power, edited by Xia Yong and etc., China University of Politics and Law Press, 1995, pp. 225ff.
- 26.
In principle, it cannot explain the basic situations of professional training for judges in the basic-level courts in China. Our research is targeted at judicial training classes. Judges obtaining formal law bachelor degree normally do not receive this kind of training. But our field research and interviews have enabled us to notice that most of the basic-level courts seldom have and even do not have graduates of bachelor’s degree from formal law schools. Even in the basic-level courts in certain counties in the suburbs of Shanghai Municipality, university graduates account for only 10 %, not to mention graduates with a bachelor’s degree in law. Please see Wang Yuan: “Court Independence and Its Dilemma” (not published).
- 27.
Almost all interviewed judges claimed that among public security organs, courts and procurators, courts are the most honest and are complained about the least by ordinary people, although this claim is not reliable enough.
- 28.
According to the Civil Procedure Law, if judgment or decisions which are already legally effective in the court are found to be wrong factually or legally, and the president of court finds it necessary to rehear the case, then the case will be submitted to the judicial committee for discussion. But as an informal system, the judicial committee will still discuss and decide civil and economic cases with difficulties, although there are only a few of them.
- 29.
Please refer to the section of “analysis of two examples” later in this chapter.
- 30.
According to Wang Yuan’s research, there were 31 criminal cases discussed by judicial committee in a court in certain county of Shanghai Municipality in 1997, amounted to about 8.2 % of all criminal cases dealt by this court in the same year. But the average percentage each year is about 10 %. Please see Wang Yuan: “Court Independence and Its Difficult Situation” as previously mentioned.
- 31.
This point is quite different from legal regulations. According to Article 63 of Administrative Procedure Law, the president of people’s court is responsible for submitting cases to the judicial committee for review only when the decisions and rulings that are already legally effective are found to be against law and need to be retried according to regulations.
- 32.
The reason that I previously emphasized “inappropriate” is because that if not harming the political and social functions of the court, then some vested interests are appropriate and should be protected. Such as the stability of the system which benefits works of people who live and work in this system and is a kind of vested benefit. And in a certain sense, it can be said that the legal system is to protect an expected and vested benefit.
- 33.
As for the ideology formed due to professionalism, especially the formation of ideology of legal professional, please see analysis of related foreign scholars, Richard A. Posner, “The Material Basis of Jurisprudence,” in Overcoming Law, Harvard University Press, 1995, p. 33.
- 34.
The majority of the main leaders of the communist movements were not from family of workers or poor peasants. The reformer of the Church in those years, such as Martin Luther, was a priest himself. Those are some typical examples.
- 35.
Please refer to Richard A. Posner, The Problems of Jurisprudence, as previous note 16, Chap. 6.
- 36.
American judge Posner used to analyze this issue and related system installation like challenge system. Please refer to The Problems of Jurisprudence, as previous note 16, especially Chap. 1.
- 37.
Please refer Chap. 10 of this book: Professionalism of Judges in Basic-level Courts.
- 38.
Please refer to He Weifang: “Realizing Social Justice Through Judiciary,” as previous note 25.
- 39.
One of the most important points is that the income of judges is too low today, especially compared with the pay of lawyers or businessmen which law school graduates may choose to be. Secondly, basic-level courts are located in small cities (towns), which are obviously not attractive to the majority of young graduates of law school (around 22 years of age). Please refer Chap. 10 of this book: Professionalism of Judges in Basic-level Courts.
- 40.
On issues of administration and bureaucracy of management system of China’s courts, please see He Weifang: “Two Problems of China’s Judicial Management System,” as previous note 1. Please also refer Chap. 2 of this book: Court Trial and its Administration.
- 41.
Please see Article 11 of the Organic Law of the People’s Court of the People’s Republic of China: People’s courts at all levels set up judicial committees which practice democratic centralism. The task of the judicial committees is to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial work. The presidents of the people’s courts preside over meetings of judicial committees of the people’s courts at all levels; the chief procurators of the people’s procurators at the corresponding levels may attend such meetings without voting rights. Please also refer to Article 3 of the Organic Law of the People’s Procurators of the People’s Republic of China: The chief procurator exercises unified leadership over the work of the procurators. People’s procurators at all levels shall each set up a procuratorial committee. The procuratorial committee shall apply the system of democratic centralism and, under the direction of the chief procurator, hold discussions and make decisions on important cases and other major issues. In the case of the chief procurator disagreeing with the majority’s opinion over a decision on an important issue, the matter may be reported to the standing committee of the people’s congress at the corresponding level for final decision.
- 42.
Even if there is a possibility for us to attend and observe, there may occur the problem of “uncertainty principle” due to our presence. To this reason, the materials we might use can only be provided by people attending the judicial committee.
- 43.
This has been shown in American courts as well. For example, Judge Bennan who worked in the Supreme Court for a long time from 1956 to the end of 1980s was thought to be the soul of liberal judges. Judge Marshall who held the office at almost the same time was thought to be lack of his own opinions. In 1990s, Chief Justice Scalia was believed to be the brain of conservatives in the Supreme Court, and Chief Justice Thomas always followed the former in viewing his opinions. Certainly, those were because of ideology reasons. In addition, judges in the US Supreme Court always respect opinions of some “experts” more on some problems of specialty. For example, some judges are better at issues of antitrust, and other judges will respect their opinions more on antitrust cases. This kind of respect on specialties of individual judges does not mean that judges give up their own thinking.
- 44.
Foucault has exactly the same opinion. Those who are interested can see Michel Foucault, Discipline and Punish: the Birth of the Prison, trans. by Alan Sheridan, Vintage Books, 1978.
- 45.
Please refer to Suli: “On Specialization of Legal Activities,” as previously mentioned; He Weifang: “Realizing Social Justice Though Judiciary,” as previously mentioned.
- 46.
At least before early 1990s, when a Chinese newspaper or magazine praised a judge, it would mention that he or she “is not afraid of threat, and not lured by promise of gain,” etc. These frequently used words may be truly related to the factor that Chinese people are accustomed to moralize legal issues, but they, on the other hand, truly demonstrate that these two “attacks” are outstanding threats to Chinese judges.
- 47.
For example, as far as the criminal case of O.J. Simpson is concerned, although the judge of first instance declared that Simpson was acquitted of a charge, nobody made irresponsible remarks on the judge. This was largely due to the fact that the fact-finding was done by the jury. However, if there is a similar case in China, what will be the destiny of this judge? Just think about the case that “fake goods producers in Jiajiang accused fraud-busters” which made the sensation throughout China in 1996. The court in Jiajiang County was questioned by the People’s Congress only because it allowed the fake goods producers to file a lawsuit. It was also blamed by media reports from Oriental Horizon, etc., aggressively and without legal foundation. The difference can be seen here.
However, it does not mean that American judges are free of risks. There are also all kinds of threats targeted at American judges, such as on the cases of artificial abortion.
- 48.
Please refer to Xie Renzhu: “The Judicial Committee Will be the Authority in Trial Profession,” People’s Judicature, Issue 2 of 1994, p. 23.
- 49.
The reason for launching the system of being held accountable for misjudgement is to enhance the sense of responsibility of judges as well as judicial independence. However, as a matter of fact, if the result is not against people’s wishes, it can still be regarded as totally unsatisfactory. This has even made judges more afraid of taking responsibilities and lack of judicial independence. This has been totally out of expectations of system designers. It has also further supported my analysis on research approach, i.e., why we shouldn’t attach too much importance to the intentions of system designers, but should focus on possible and actual effects.
- 50.
This is very similar to certiorari (the original Latin meaning of this word is “to make it more certain” or “to know more about the situation”). certiorari means that the US Supreme Court decides to review the case due to its major legal issue. It is decided by the Chief Justice, but not a legal duty.
- 51.
Please refer to Abraham, Judicial Process, for relatively more detailed introduction, as previous note 15, pp. 183ff.
- 52.
According to our follow-up survey, the judicial committee of that county could not resist the strong pressure. At the initial discussion, the judicial committee had several opinions, which all believed that defendant’s behaviors had not constituted crime. But constrained by pressure of the society and local government, they admitted that the behaviors of the defendant were suspicious of wrongdoing (which strictly speaking was already a progress). However, in the end, the judicial committee made concessions by 5–4 and sentenced the defendant a year of imprisonment with one year of suspension. The judge interviewed said that “during the trial, the defendant’s face was covered with tears… the local policemen refused to go out on patrol for several days.” Many years later, when I once again came into contact with the parties concerned of this case, I was told that in order to make the defendant Wang accept the judgment, the leaders of the local police station in the county promised to help Wang’s son get employed as an exchange. And they actually kept their promise!
- 53.
He Weifang: “Two Problems of China’s Judicial Management System,” as in previous note 1.
- 54.
This issue is also a factor to be considered when court makes decision in the USA. For example, the two most well-known cases in the USA—Marbury v. Madison and Brown v Board of Education—are, to a large extent, took into consideration whether the court judgments could be implemented effectively. In the former case, such consideration had made Chief Justice Marshall deny that the court had jurisdiction over this case after he had attacked the government. But in the latter case, after having declared that racial segregation was against the constitution, the Supreme Court did not require the government to make correction immediately, but allowed the government to gradually eliminate racial segregation it thought as deliberate. As for Chief Justice Marshall’s consideration in the case of Marbury v. Madison, please refer to Chinese materials provided by Suli: “How are systems formed?” as in the previous note. But please note that in these two American cases, the implementation issues considered by judges are actually whether other organizations can implement the decision. However, in China, the implementation of judicial decisions is one of the jobs of court.
- 55.
Many writings of foreign scholars have pointed out the two functions of court, and they have especially emphasized the expectation function of rules. As far as I see, these two functions cannot be separated completely in the activities of court. Moreover, functions of modern court have gradually changed from dispute settlement in the past to “establish a set of rules to influence the future behaviors of parties of the current case and other people” (by Posner) through resolving detailed disputes. Please refer to Posner, Economic Analysis of Law, as previous note 13, p. 521. As far as dispute settlement is concerned only, it is not necessary for the parties concerned to turn to court for help. There are many disputes settled by some other means among people—administration, mediation, arbitration, and self rescue. As long as there are no favorable relations between the deciding organization or people and the parties concerned, the settlement is not necessarily more unfair than that of the court. And the courts are not necessarily more impartial or have a special channel towards the truth of the matter than other organizations or people settling the dispute (we may therefore judge that the currently popular saying that bring all disputes to the court is a ideological fairy tale, behind which there is a huge interest drive from some special interests groups like judges, lawyers, law school professors and students). In today’s society, the more important function of the court is to ensure that rules are formed in daily life through its special activities. The formation and confirmation of rules has huge positive externalities than settlement of disputes, since it can provide guidance or reference for settlement of other disputes. It is just in this sense that it is more suitable to regard the court as a organization to provide “public goods” instead of private goods.
- 56.
I used to discuss this issue particularly in “the lawsuit of the Story of Qiu Ju, Qiu Shi’s rat poison case, and freedom of speech.” Rule of Law and Native Resources, as previous mentioned. I emphasized the significance of freedom of speech as a rule and praised highly the attention paid to rules demonstrated by court judgment of these two cases.
- 57.
The high expectation of “strict liability” by people in the basic-level society in China has been demonstrated in these two cases. But from the perspective of legal system, “strict liability” is an effective rule formed in the social condition in which the science and technology so lags behind that it is impossible to distinguish negligence from on purpose, and the society lacks effective risk-sharing mechanism. Only under this vision can we understand that “liability for fault” is a product of progress in social life conditions, but not a product of pure intellectual development. As for analysis of “strict liability,” please refer to Oliver Wendell Holmes, Jr., The Common Law, Little, Brown, and Company, 1948, and Richard A. Posner, The Economics of Justice, Harvard University Press, 1981, especially Chap. 6. For this reason, due to some changes in social conditions nowadays, “strict liability” has somewhat revived in justice. However, China’s jurist circle and legal circle should have a clearer thinking of its practical logics and should not think that “strict liability” must be more “just” than “liability for fault..”
- 58.
This factor has also penetrated into the language about judicial justice which is currently quite popular. Please think about the Jiajiang anti-counterfeit case mentioned in previous note 80 and two cases analyzed briefly in this chapter (especially the first case); you will see that when there is a strong public sentiment, acting according to rules will be regarded as judicially “unjust.” This may be a tricky problem of rule of law in China’s changing society.
- 59.
This is an important reason for why I started from basic-level judges, but not from judges from intermediate courts and above. In comparison, courts above the intermediate level mainly deal with second-instance cases (in jure). Thus, in terms of dealing specific dispute, judges of the intermediate courts are and need not to be as sensitive as the judges of the basic-level courts, and they feel less social pressure.
- 60.
Lon L. Fuller therefore regarded law as “an undertaking to make people’s behavior submit to governance of rules,” and please see The Morality of Law, rev. ed., Yale University Press, 1969, p. 106; the Chief Justice of U.S. Supreme Court Antonin Scalia had one important essay named as “The Rule of Law as a Law of Rules.” Please see, Antonin Scalia, "The Rule of Law as a Law of Rules," University of Chicago Law Review, 1989, vol. 56, p. 1175.
- 61.
Here, I am only giving analysis to the supporting point of judicial independence, not imply that China should or should not adopt those systems. The system of jury certainly has its advantages, but it has disadvantages as well. As for overview of these kinds of disputes in America, please refer to Abraham, Judicial Process, as previous note 15, pp. 136–140. What is more important is that European Continental countries do not have jury systems. US federal judges are all appointed (for a lifetime), but in some states, the election system is adopted and judges are not appointed for lifetime. All these foreign systems need to be studied in detail in their own systems and contexts.
- 62.
Judge Posner thinks that the latter two problems are actually the key issues in judiciary. His summary is “how to prevent law specialists from becoming a professional privilege level, and prevent that their purposes are too much different from purposes demanded by the society and understood by the public” and “how can a judge, under the situation that he himself hasn’t experienced any event causing disputes, make a thorough investigation on the factual truth of the cases which he is asked to try.” Please see The Problem of Jurisprudence, translated by Suli, China’s University of Politics and Law Press, 1994, pp. 7–8 (with some changes in the translation).
- 63.
For example, “He’s house was burned down only because he tried to punish local villains and protect social security. He was falsely accused and framed up twice only because he wanted to enforce law impartially and didn’t bow to the powerful and the rich.” Please see Liang Gonghua, Guo Minzhen: “I can’t leave the village people alone!” People’s Judicature, 1991, Issue 1, page 4. You may find more vivid and terrifying report from Xiong Yi: “The Critical Moment,” People’s Judicature, 1991, Issue 8, pp. 45–46. Three judges in this article were attacked by the defendant with a knife, and the tribunal director “even had his intestines exposed.”
- 64.
Please refer to Suli: “On Specialization of Legal Activities,” Rule of Law and Native Resources, China University of Politics and Law Press, 1996, especially Sect. 3.2. In fact, among examples of judicial independence which most frequently quoted by people, British Lord Chancellor Sir Edward Coke resisted interference of justice by King James. Its most important and key argument is that judges have special skills of justice, that is, the so-called artificial reason but not political and moral philosophy which is popular on textbooks of jurisprudence.
- 65.
On this issue, some people may propose the judge rotation system. If we do not consider practical restrictions, this system is feasible in terms of logics. However, once put into the specific society, its limitation is exposed. First of all, only a few judges can be rotated, and most judges cannot be rotated. And rotation is certainly restricted by financial resources. Secondly, effective rotation must be cross-domain. If only rotation within the county, it is only a change in the form but not in the content. However, the number of judges that can be rotated may be smaller if cross-domain functions are involved. Thirdly, both rotation and non-rotation have their advantages and disadvantages. It is sometimes good for judges to implement functions if they are familiar with a region and local customs (languages included) and not necessarily always on the contrary. Even if we do not consider these pros and cons, the rotation of a judge is not the job transfer of a person, but involves relocation of a whole family, which requires special fees up to tens of thousands of yuan (including transportation and losses. People often say, “relocation three times equals to being burnt down once.”). If the judge himself has to pay for part or whole of the fees, it will further reduce judge’s relatively meager income. If the country pays for these fees, it will increase a large number of expenses annually and thus increase costs of the society and individuals. Due to financial limitations, rotation cannot be frequent or involve too many people. But if the rotation is not frequent and only a few people are involved, there will be no obvious effect on the rotation. If the rotation is ordered through administrative method, talents in court system will flow out further, and the actual expenses of judges will increase due to rotation. As far as I'm concerned, especially considering that courts nowadays are in severe short of funds, this seemingly good suggestion is basically a showy empty talk.
- 66.
The majority of graduates have entered the circle of lawyers, business, and politics. Among my classmates, only less than 10 % entering the judicial system (courts, procurators, public security), and the minimum level is the intermediate procurators. However, the number of full-time lawyers and part-time lawyers greatly exceeds the number of people working in the judicial system. Please refer to Chap. 10 of this book “Professionalism of Judges in the Basic-level Courts.”
- 67.
The main point is that their knowledge is not appropriate for needs. Please refer to Chap. 10 of this book “Professionalism of Judges in Basic-level Courts.”
- 68.
For a successful example which has been publicly reported only recently, please see “To Correctly Understand the Supervision of People’s Congress over Judicial Work—A Research on Correction of a Court Misjudged Case by Xinyi Municipal People’s Congress of Jiangsu Province,” People’s Daily, June 10, 1998, page 9.
- 69.
Please refer to my analysis of the formation and establishment of American judicial review in the article of “How are systems formed?” (as previously mentioned).
- 70.
“Autumn Water,” Zhuangzi.
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Zhu, S. (2016). The Judicial Committee System in Basic-level Courts. In: Sending Law to the Countryside. China Academic Library. Springer, Singapore. https://doi.org/10.1007/978-981-10-1142-9_3
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